the evidential test continued to be met

If you’ve been following the fall-out after the prosecution in the Stormont spy-ring case was stopped “in the public interest” – see here, here, and here – you’ll know that the Attorney General, Lord Goldsmith, has been pushed forward to front the case for the defence – of the decision not to prosecute that is. In response to a letter from the House of Commons NI Affairs Committee to Tony Blair on 15th December, Lord Goldsmith’s letter in reply, dated 9th January, sets out the time-line of that decision, sketching the reasons why the decision was taken.. but not the detail. The NI Affairs Committee today released a short report, containing both letters [PDF version here]. One interesting aspect is that the letter states that no actual decision was taken following the Shawcross consultation in January 2005, and that “the information obtained [from the ministerial consultation] formed no part of the Director’s decision to discontinue the prosecution in December 2005.” The Attorney General explicitly states that “That decision was informed by facts and information provided by the Chief Constable in November 2005 following upon further development of the trial process.”

Here’s the section on the actual decision by the DPP not to prosecute. In which the Attorney General restates that even though the prosecution was withdrawn, “the Director’s view was that the evidential test continued to be met.”

As in England and Wales, the Director of Public Prosecutions for Northern Ireland will initiate or continue with proceedings if the test for prosecution is met, and continues to be met. In Northern Ireland that test is whether there is sufficient evidence to afford a reasonable prospect of conviction and, if there is, whether prosecution is in the public interest. As was made clear in the statement made in court the Director’s decision to discontinue the prosecution was based on his assessment of the public interest. In reaching his decision, the Director was informed by facts and information received from the Chief Constable. Having regard to that information, and his duties as a public authority under the Human Rights Act, the Director concluded that the prosecution was no longer in the public interest. It necessarily follows that in withdrawing a prosecution on that basis the Director’s view was that the evidential test continued to be met.

He goes on to refuse to comment on Denis Donaldson’s claim to be a police informant –

Since then there has been considerable speculation about the case and the reasons for its discontinuance. The defendant Denis Donaldson has also claimed that he was a police informant. I cannot comment on that: you will understand, I know, that it has long been the practice of successive governments neither to confirm nor deny such claims on the basis that to do so may jeopardise national security. That practice is well understood and I will not depart from it.

And to state, again, that political considerations “did not form any part of, or in any way affect, the decision” –

The Director and I recognise the potential this decision has – particularly the limited explanation that has been given for it – to damage confidence in the new Public Prosecution Service. It if were possible for further explanation to be given, the Director and I would have provided it in order to avoid that very risk. Regrettably, to do so might be liable to give rise to the very damage the decision to discontinue was intended to avoid. I therefore particularly welcome your letter so that I may give you, and the Committee, my absolute assurance that there was no political interference and there was no question of the decision being taken to cover any possible embarrassment to the Government. Political considerations did not form any part of, or in any way affect, the decision.

Finally, after detailing the procedure of the decision-making process, and sketching the possible reasons for the decision.. he refuses to go further.

I am not able to explain the nature of the sensitive and confidential information that was considered in this case, nor give details of individual disclosure hearings, but I can assure you that the prosecution was properly vigorous in pursuing the interests of justice and that all proper steps, including the appointment of special counsel by me, were taken during the course of the criminal process to bring this matter to trial.

Questions have also arisen over the issue of consultation. The process of seeking information from Ministerial colleagues is now well established and is known as a Shawcross exercise after the Attorney General who explained it to Parliament in 1951. You may well be familiar with the process, but should you wish to read the explanation given by Sir Hartley Shawcross, you will find it in Hansard at OR 29 January 1951 col 681.

In January 2005, as part of the trial process, I consulted Ministerial colleagues in this way as to whether they had information that might bear on the consideration of the public interest by the Director. In the event, having regard to ongoing developments in the trial process, no decision was required to be taken at that time and the information obtained formed no part of the Director’s decision to discontinue the prosecution in December 2005. That decision was informed by facts and information provided by the Chief Constable in November 2005 following upon further development of the trial process. No further ministerial consultation took place. As a matter of course, given the profile of this case, I did inform No 10 and the Secretary of State of the decision once it was made but before it became public.

So, we are still no nearer any actual information on the decision not to prosecute.. apart from being directed away from all of the politicians that is.. again..

  • Crataegus

    They are working overtime trying to burry this.

    “In Northern Ireland that test is whether there is sufficient evidence to afford a reasonable prospect of conviction and, if there is, whether prosecution is in the public interest. As was made clear in the statement made in court the Director’s decision to discontinue the prosecution was based on his assessment of the public interest.”

    Carefully worded but clearly the reason for dropping this was public interest and not lack of evidence. So what is the Public interest?

    This reads like the script from Yes minister and at crucial points there are qualifications inserted which makes me believe that this is a scholarly piece of fudge. When people are telling the truth the answers are generally short and to the point. When people have something to hide the answers tend to be Byzantine in complexity with all sorts of qualifications and deviations from the core issue.

    This will surface again.

  • June76

    The statement above contains a rather important non-sequitur

    “..the Director concluded that the prosecution was no longer in the public interest. It necessarily follows that in withdrawing a prosecution on that basis the Director’s view was that the evidential test continued to be met.”

    Consider a more mundane scenario. I will not go to the shops today if (a) it is not in my interests to do so, or (b) the shops are not open. I later decide not to go to the shops citing as my reason that “…it was not in my interests to do so”.

    What if the shops were shut and that was why it was not in my interests to go? What if there was insufficient evidence and that was why the DPP decided that prosecution was not in the public interest?

  • Crataegus

    June76

    True this is the sort of answer that can mean whatever you want to read into it. It is cleverly worded to ensure wriggle room at some future date. Why go to this sort of bother?